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Wrongful Denial of Benefits for Reconstructive Surgery Following Mastectomy

We continue to see instances where group health insurers deny coverage to women who elect to have reconstructive surgery following a mastectomy.  With the exception of certain church plans and governmental plans, this practice is in derogation of both federal law and the law of New York State. 

The federal Women’s Health and Cancer Rights Act of 1998 requires that health insurers who cover mastectomies also cover all stages of post-mastectomy services determined after consultation between the patient and the attending physician. Such services may include reconstructive surgery on the breast on which the mastectomy has been performed; surgery and reconstruction of the other breast to produce a symmetrical appearance; prosthesis; and services to address physical complications. 

At the state level, New York’s Insurance Law provides identical protections for women diagnosed with breast cancer. According to the legislative history, the bill was introduced with the following intentions in mind: A patient who must undergo a mastectomy should have the right to decide with their primary care physician or surgeon how rehabilitation will occur after surgery, and that decision should not be guided by limitations set by insurance industry policy.  Instead, the law would preserve a patient’s ability to consider all post-treatment options. And the law would prevent insurers from denying claims for post-mastectomy breast reconstruction surgery as being purely “cosmetic” or “not medically necessary.”

Despite legal protections, breast cancer patients need to act swiftly to preserve their rights if they are denied coverage for post-mastectomy services. Patients will be sent an Explanation of Benefits statement (EOB) that describes the cost of their medical care, the amount covered by insurance and the amount that they will owe.  If benefits are denied for post-mastectomy services, or even if the level of coverage for those services has been reduced, patients must timely file an internal appeal with their insurer.  In most instances, the EOB will describe how an internal appeal may be filed and the deadline by which the filing must be made. Further, and in many instances, the appeal process will have more than one level. Importantly, patients must fully exhaust the internal appeals process with their insurer before they will have standing to file a lawsuit.   Hollis Laidlaw & Simon P.C. represents patients who have been wrongfully denied benefits at all stages, including internal appeals and lawsuits.

For more information, please contact David Simon, Esq.

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